F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 17 January 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 January 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Stefano Sartori (Italy), member

José Luis Andrade (Portugal), member

on the claim presented by the club,

Al Nassr, Saudi Arabia

as Claimant/Counter-respondent

against the player,

Víctor Hugo Ayala Nuñez, Paraguay

represented by Ms Melanie Schärer

as Respondent 1/Counter-Claimant

and the club,

Atlético Boca Juniors, Argentina

as Respondent 2

and the club,

Atlético Lanús, Argentina

as Respondent 3

and the club

Barcelona SC, Ecuador

as intervening party

regarding an employment-related dispute between the parties

I. Facts of the case

1. On 4 August 2016, Al Nassr and Lanus signed a transfer agreement (hereinafter: the transfer agreement) for the definitive transfer of the player from the latter to the former.

2. In accordance with the transfer agreement, Al Nassr was to pay to Lanus a transfer fee of USD 2,000,000.

3. On 3 August 2016 the player and Al Nassr signed an employment contract (hereinafter: the contract) valid as from the date of signature until 2 August 2018.

4. Art 4 of the contract specifies the remuneration as follows:

1) For first season (2016/2017), a wage of USD 125,000 (One hundred twenty five thousand US Dollars net) during twelve month of the first year equivalent to an annual salary USD l,500,000 net (Only One Million Five Hundred Thousand US Dollars net) for first season payable as follows:

a. USD 500,000 in advance on signing the contract.

b. USD 200,000 in advance on 01/02/2017.

c. The remaining wage is payable in equal twelve instalment of USD 66.666 (Only Sixty Six Thousand Six Hundred Sixty Six US Dollars net) at the end of each subsequent month.

2) For the second season (2017 /2018), a wage of USD 141,666 (One forty one thousand and Six Hundred Sixty Six US Dollars net) during twelve month of the first year equivalent to an annual salary USD l,700,000 net (One Million seven Hundred Thousand US Dollars net) for the second year payable as follows:

a. USD 500,000 (Five Hundred Thousand US Dollars net) in advance of wage on 01/08/2017

b. USD 300,000 (Three Hundred Thousand US Dollars net) in advance of wage on 01/02/2018.

c. The remaining wage is payable in twelve equal twelve instalment of USD 75.000 (Seventy Five Thousand US Dollars net) at the end of each subsequent month.

3) Any other benefits: […]

c. The Second Party will get (Four) round trip air-tickets for him and his family for each year.

[…]

f. Allow the Player chosen within the national team to join playing or training immediately when requested by the association concerned in accordance with the regulations.

5. In accordance with art. 8 of the contract, Al Nassr “may take decisions and issue sanctions against [the player] in case of violating his obligations stipulated in the contract without prejudice to regulations, provided that he shall inform [the player] in writing, and the later may object according to regulations and rules”.

6. According to the documentation on file, on 12 January 2017, Al Nassr put the player in default arguing that the player was absent from training and that he should have returned to the club on 11 January 2017.

7. Allegedly, on 24 January 2017, Al Nassr convoked the player to a disciplinary hearing planned on 24 January 2017 regarding alleged absences.

8. On 25 January 2017, Al Nassr informed the player via email that he had been absent from the disciplinary hearing planned on 24 January 2017.

9. On 1 February 2017, the player apologized for his multiple absences via a letter, in which he specified ”if you would like, I will ask to deduct from his salary a compensation from his salary lost due to the absence for a 22 days to cover the missed time from 27 December 2016 to 18 January 2017”. The letter also provide that in case the player reiterate his absences or leave the country without authorization, Al Nassr would have just cause to terminate the contract. It must be noted that the said letter had Al Nassr letterhead and was signed by the player.

10. On 4 May 2017, the Asociacion Paraguaya de Futbol (hereinafter: the APF) informed Al Nasr of the convocation of the player for the national team.

11. On 7 May 2017, the player left the country.

12. According to the documentation on file, on 18 May 2017, Al Nassr put the player in default arguing that he was absent as from 6 May 2017 since he was not authorized to join his national team by Al Nassr and it informed him that he would not be entitled to any salary for the period of absence and that Al Nassr would set off this amount to be deducted as sanction to the amount owed by Al Nassr toward the player.

13. On 9 June 2017, Al Nassr informed the player via email that he was expected to be back by 14 June 2017 as it was the beginning of the pre-season camp, and it enclosed flight tickets for the player as well as an alleged visa for the player.

14. On 19 June 2017, Al Nassr put the player in default arguing that he failed to reply to Al Nassr’s previous letter and granting him 72 hours to come back to training.

15. On 27 June 2017 and 1 July 2017 Al Nassr reiterated its default arguing to have received no reply from the player.

16. On 21 July 2017, Al Nassr took “notice that the contract is deemed terminated by [the player] as of 6 May 2017 accordingly for job abandonment”.

17. Allegedly, on 25 July 2017, the player replied to Al Nassr arguing that the club had constantly paid him with delays up to 5 months, and that at the time he left the club in May 2017, 2 salaries were outstanding. He also argued that he was willing to settle the matter amicably and that he “was willing to resign the unpaid sums if both parts solve the contract, specifically the ones explained on item 4 letter b clause of the contract (USD 200,000).

18. On 27 July 2017, Al Nassr terminated the contract arguing that the player had abandoned his employment and never replied to its numerous default before 25 July 2017.

19. On 2 January 2018, the player and the Ecuadorian club, Barcelona SC (hereinafter: Barcelona SC) signed an employment contract valid as from the date of signature until 31 December 2020, in accordance with which the player was entitled to a monthly salary of USD 500 payable on the 10th of the following month.

20. Al Nassr lodged a claim against the player for breach of contract, and against Boca and Lanus for inducement, requesting the following:

 USD 5,846,275.86 plus 5% interest as from the date of the claim, as compensation for breach of contract corresponding to :

- USD 1,000,000 “in light of sport specify”;

- USD 560,000 “for the commission paid to the agents plus 5% p.a. for the first payment in the amount of USD 260,000 made on 7 August 2016 and the remaining USD 260,000 as of the date its effective date of performance (i.e. as of 1 August 2017”

- USD 794,889 “for the player’s replacement”

- USD 1,250,000 “for the non-amortized part of the transfer compensation”

- USD 2,175,000 as remaining value of the contract (May 2017 to July 2017 as well as the entire value of the 2017/2018 season);

- USD 66,386.86 corresponding to the refund of “the wage overpayment”

 SAR 69,485 “for the aircraft provided to the player and his substitute player”.

 For Boca and Lanus to be jointly liable for the payment of the aforementioned amounts;

 Legal expenses at the charge of the player, Boca and Lanus;

 Sporting sanctions to be imposed on the player and on Boca and Lanus;

 “To order the Claimant [Al Nassr]’s right of triangular setting off the non-amortised transfer fee in the amount of USD 1,250,000 against [Lanus] in the procedure FIFA case 16-01837/mdo”.

20. According to Al Nassr, the player was frequently absent which resulted according to Al Nassr to salary deductions corresponding to the daily equivalent of his monthly salary multiplied by the days of absences. For instance, Al Nassr argued that the player was absent on the following occasions:

 8 September 2016 to 12 September 2016

 27 December 2016 to 18 January 2017

21. Al Nassr added that, despite being convoked to a disciplinary hearing the player did not attend it. But that following that absence he apologized and committed to not be absent anymore.

22. Al Nassr argued that the player left the country on 6 May 2017 following a call from the PFA without its authorization.

23. According to Al Nassr, it has no overdue payments toward the player. Furthermore, Al Nassr considered that there were no outstanding amounts due to the player, insofar as the player’s alleged absences led to the imposition of sanctions that crystalized in the application of monetary deductions from his salaries.

24. Al Nassr considered that it had just cause to terminate the contract as the player “was in breach of the core obligation under the contract and after being properly notified he continued his illegal behaviour for extending his unauthorised leave for such long-lasting absences from work without answering the multiple notices of his employer”.

25. In reply to Al Nassr’s claim, the player lodged a counterclaim against Al Nasr for outstanding remuneration and compensation for breach of contract requesting the total amount of USD 2,640,539.14 corresponding to the following:

 USD 702,847.14 as outstanding remuneration, plus 5% interest as follows:

 USD 500,000 for the advance on signing the contract, plus 5% interest as from 4 August 2016;

 USD 200,000 as advance payment, plus 5% interest as from 2 February 2017;

 USD 2,847.14 as remaining part of the salaries for the months of August 2016 until April 2017, plus 5% interest as follows:

o On USD,347.14 as remaining part of August 2016 salary, interest as from 9 November 2016;

o On USD 100 as remaining part of September 2016 salary, interest as from 19 November 2016;

o On USD 100 as remaining part of October 2016 salary, interest as from 11 February 2017;

o On USD 100 as remaining part of November 2016 salary, interest as from 11 February 2017;

o On USD 100 as remaining part of December 2016 to February 2017 salaries, interest as from 11 May 2017;

o On USD 100 as remaining part of March and April 2017 salaries, interest as from 25 May 2017.

 USD 1,899,998 as compensation for the breach of contract plus 5% interest as from the date of the counterclaim, corresponding to 3 monthly salaries under the first season and to the entire remuneration due under the second season.

 USD 37,694 as reimbursement of the flight ticket costs.

26. According to the player, Al Nassr provided fraudulent proof of payment regarding the alleged payments of USD 500,000 as advance payment due on the date of the signature of the contract. In this regard, the player argued that the proof of payment provided by Al Nassr did not mention the player (3 bank transfers were provided by the club, indicating transfers made in the following amounts: USD 196,000; USD 124,000 and USD 180,000. For these transfers the beneficiaries are respectively indicated as Lanus, “Jieyu (Hong Kong) Trade co” and “East star China import and export limited”).

27. The player argued that although the contract started in August 2016, in November 2016 he still had not received any payments from Al Nassr and that he threatened the club and went on strike refusing to play a match beginning of November 2016 to get paid. Pursuant to which he received a payment of USD 10,000.

28. The player also underlined that Al Nassr did not help him with the relocation of his family, which he deemed to be a contractual obligation.

29. The player argued that he wanted to leave the club since December 2016, but his agent convinced him to wait and that Al Nassr would pay his outstanding salaries and advance payments.

30. Regarding the late return in January 2017, the player argued that it was due to an administrative issue with the visa of his family and that in any case, Al Nassr was still in breach since it still had overdue payments toward him.

31. According to the player, at the end of February 2017, the salaries of December 2016 to February 2017 included were still outstanding as well as the two advance payments.

32. He argued that he complained on multiple occasions to Al Nassr, but that despite his complains the situation did not get better.

33. The player argued that he unilaterally terminated the contract on 7 May 2016 by leaving Al Nassr following the last game of Al Nassr before the summer break. He argued that he informed the club which agreed to provide him with flight tickets for his family and him, but in the end allegedly only paid for USD 5,000 for the relocation of the luggage of the family. According to the player, this payment shows that Al Nassr knew that the player would not come back.

34. At the date of termination, the player asserted that he had received the following payments:

 USD 10,000 on 3 November 2016;

 USD 54,318.85 on 8 November 2016;

 USD 66,566 on 18 November 2016;

 USD 66,566 on 10 January 2017;

 USD 66,566 on 10 February 2017.

When he deemed he should have received in total USD 1,299,994 (9 monthly salaries and the two advance payments).

35. On the absences, the player denied having received any convocation to a disciplinary hearing and that Al Nasr did not provide any email transmission evidence in this regard.

36. He argued that he only signed the apology letter dated 1 February 2017 due to the insistence of his agent who assured him that it will help the club to feel obligated to pay the outstanding amounts quicker.

37. The player further argued that the letter dated 25 July 2017 was written by the club and that the club forged his signature.

38. The player underlined that even without putting the club in default, which he alleged he did by his reactions to the non-payments (not returning from vacation, going on strike and complaining orally), the breaches of the club were so important and numerous that he would still have just cause.

39. In reply to Al Nassr’s claim, Boca argued that it did not induce the player and that the claim only concerned Al Nassr and the player.

40. Boca further argued that the player never played for Boca, was never registered with Boca and that Boca had no link with the alleged breach of contract of the player.

41. Boca added that the joint liability only concerns the new club of the player, which is the one with which the player signs an employment contract following the alleged breach, however, Boca argued that the player had not signed with any club. Boca underlined that it was not the new club of the player and that it did not induce him in any way.

42. In reply to Al Nassr’s claim, Lanus argued that since it transferred the player to Al Nassr in 2016, it had no more linked to the player and does not understand why it would be a party to such claim. Lanus added that it did not receive the transfer fee from Al Nassr

43. On the counterclaim of the player, Al Nassr argued that the payment of USD 500,000 had been made to the player via 3 different intermediaries following the request of the player.

44. Regarding the forgery allegation, the club is not in possession of the original as it argued that it originated from the player.

45. According to the club, the aforementioned 3 payments were made for the payments of the salaries of August to November 2016. Al Nassr reiterated that it had overpaid the player.

46. Al Nassr stressed that the player should have put the club in default and that consequently “the club was not in breach of any contractual obligations, in particular due to the fact that the player did not inform the club about its financial default”.

47. Al Nassr also quoted the Transfer Regulations to underline that it is not mandatory for clubs to release a player “for matches scheduled on dates not listed in the Coordinated International Match Calendar” and that the match for which the player was convoked with his national team happened before the end of the sporting season in Saudia Arabia, and that consequently, the club could refuse for the player to go.

48. The only amounts that Al Nassr recognized as outstanding is the USD 200,000.

49. Moreover, in an unsolicited correspondence, Al Nassr added that the payment of USD 196,000 was to be made to Lanus since the player allegedly needed to pay this amount to Lanus to be released by Lanus. The club further added, the proof that the transfer dated 7 May 2017 had been made to the player.

50. On the USD 500,000 allegedly paid to the player, he argued that Al Nassr did not provide “the relevant bank extract” to confirm those payments. Moreover, the player argued that the alleged authorization from the player to pay him via intermediaries’ accounts are forged and not dated and that the payments should have been made via the means provided in the contract.

51. On the letter dated 25 July 2017 allegedly sent by the player, he argued that since that document was forged, and that Al Nasr was the one who provided the document in question, the burden of proof was on Al Nasr to prove that it was not a forgery. The player added that consequently, it had not accepted to delete the debt of USD 200,000 as the aforementioned letter allegedly stated.

52. On the absence of formal default notice, the player argued that since the contract had provided for due dates for all payments, “it was in default automatically on expiry of the stipulate deadlines”.

53. Concerning the letter dated 1 February 2017 and the allegation that the player would have agreed to set-off the salary of 22 working days, he explained that it would only be valid “if the player commits an intentional breach of the contract”.

54. The player further added that the FIFA Regulations did not provide that a club could oppose his player’s departure for national team in case that such match happened before the end of the season in Saudi Arabia.

55. Boca reiterated that it had no linked to the player or Al Nassr.

56. In its last comments Lanus insisted that it received no amounts from Al Nassr regarding the transfer of the player and underlined that naming Lanus as a Respondent in this case was just a dilatory strategy of Al Nassr toward Lanus since it owes Lanus USD 2,000,000 for the transfer of the player. Lanus pointed out the “absurdity of Lanus being brought into those proceedings since Al Nassr has no legal or facts arguments” against Lanus.

57. Upon being requested by the FIFA administration to provide its comments on the present matter, Barcelona SC denied having had any influence in the contractual relations between the player and Al Nassr and that it did not induce the player in any way.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 31 August 2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the DRC noted that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Saudi club and a Paraguayan player; with the intervention of two Argentinian clubs.

3. The competence having been established, the Chamber decided thereafter to analyze which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2020), and considering that the present matter was submitted to FIFA on 31 August 2017, the 2016 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. Having established the foregoing, and entering into the substance of the matter, the DRC continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Chamber emphasized that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In continuation, the Chamber acknowledged that, on 3 August 2016, the parties concluded an employment contract valid as from 3 August 2016 until 2 August 2018, in accordance with which the player was entitled to the remuneration specified in point I.4 above.

6. Subsequently, the Chamber noted that the club lodged a claim against the player, maintaining that the latter had continuously breached the employment contract insofar as the player: 1) was allegedly absent on several occasions; 2) abandoned the club on 6 May 2017 and did not come back despite the club having put the player in default, urging the latter to comply with his contractual obligations. Consequently, the club stated that, when the player left the club on 6 May 2017, he terminated the contract without just cause. In line with the above, the club requested to be awarded compensation for breach of contract in the total amount of USD 5,846,276 (cf. breakdown contained in point I.20 above).

7. The Chamber observed that, in reply thereto, the player lodged a counterclaim against the club arguing that the latter breached the contract when failing to comply with its financial obligations towards the player. In particular, the player maintained that the club failed to pay: 1.) the sign-on fee of USD 500,000 which fell due on 4 August 2016; 2.) the advance payment of USD 200,000, which fell due on 2 February 2017; 3.) the remaining part of the monthly instalments as from August 2016 until April 2017 in the amount of USD 2,847. In line with the above, the player requested both, outstanding remuneration and compensation for breach of contract, in the total amount of USD 2,640,539 (cf. breakdown contained in point I.25 above).

8. In this respect, the DRC observed that that the club held that it duly made the payment of USD 500,000, due on 4 August 2016, but to other beneficiaries and not to the player, allegedly due to tax purposes, circumstance of which the player was aware and agreed thereto. The Chamber also noted that the club admitted that the amount of USD 200,000, which was payable on 1 February 2017, remained unpaid.

9. In addition, the Chamber acknowledged the argument of the club, by means of which the latter argued that the player never formally put the club in default of payment of any outstanding amounts and, hence, the club was not in breach of its contractual obligations.

10. Moreover, the DRC took note of the argumentation of the player. In particular, the Chamber duly noted that, according to the player, the club failed to prove that the player agreed to the payment of USD 500,000 to be made via some alleged intermediaries or beneficiaries; extreme that, according to the player, is not true. Furthermore, the player argued that the failure of the club to comply with its financial obligations towards him, constituted an automatic default and, hence, the player did not carry the obligation to put the club in default of payment.

11. Having established the above, and in view of the diverging positions of the parties, the members of the Chamber turned their attention to the central issue at stake, namely whether the contract was terminated by the player with or without just cause and to decide on the consequences thereof.

12. With the above in mind, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

13. In doing so, the DRC recalled that, as a matter of fact, the player terminated the contract on 7 May 2017, when the player abandoned the club due to the club having failed to comply with its financial obligations towards the player. In particular, the Chamber recalled the content of art. 14bis of the Regulations, in accordance with which the creditor player should put the debtor club in default of payment of at least 2 monthly salaries, granting the debtor party a minimum of 15 days to remedy the default before terminating the contract for said termination to be considered as made with just cause.

14. In this context the DRC unanimously concluded that, in view of the specific circumstances surrounding the termination of the contract by the player: the player leaving the club without any authorization; the player not having put the club in default of payment of the alleged outstanding amounts; and the player not replying or replying late to the several default notices sent by the club, the DRC considered that, on 7 May 2017, the player terminated the contract without just cause.

15. Subsequently, prior to establishing the consequences of the termination of the employment contract without just cause by the Respondent / Counter-Claimant in accordance with art. 17 par. 1 of the Regulations, the Chamber held that it had to address the issue of unpaid remuneration to the player at the moment when the contract was terminated by him.

16. In this context, the members of the Chamber noted that it remained undisputed that the club had failed to make the payment of USD 200,000, which fell due on 2 February 2017.

17. In addition, the DRC made reference to the payment of USD 500,000, which, according to the club, was duly made to the player via some alleged beneficiaries; event that was contested by the player. In this regard, the Chamber concluded that, in application of art. 12.3 of the Procedural Rules, the burden of the proof was to be carried by the club to prove that the payment of the said amount via the so-called beneficiaries, was an extreme agreed with the player. In this context, the DRC considered that the club failed to prove so and, hence, the amount of USD 500,000 shall be considered as outstanding.

18. Furthermore, the DRC referred to the monetary deductions unilaterally made by the club from the player’s entitlements due to the absences of the player and concluded that those deductions were made neither on the basis of sanctions provided in the contract nor on sanctions provided within the internal regulations of the club. In view of the above, the Chamber considered that any offset of the player’s remuneration with the application of unfounded disciplinary sanctions shall be considered as null.

19. In this context, the DRC acknowledged that the player should have received in total, from August 2016 to April 2017, the amount of USD 1,299,994. In this respect, the Chamber determined that, taking into account the evidence provided by the parties, including the bank statements provided by the player, it could be ascertained that the player received the amount of USD 597,164.

20. Bearing in mind the above, the Chamber, in accordance with the general legal principle of pacta sunt servanda, decided that the club is liable to pay to the player outstanding remuneration in the amount of USD 702,830 (1,299,994 – 597,164 = 702,830), which corresponds to the lump sums of USD 500,000 and USD 200,000, as well as to the remaining amount of USD 2,830 that remained unpaid to the player from the salaries as from August 2016 until April 2017.

21. In this context, the DRC concluded that the Claimant / Counter-Respondent must pay to the Respondent / Counter-Claimant the amount of USD 702,830 as outstanding remuneration. In this respect, the Chamber considered that, in view of the player’s request and in line with the usual practice of the Chamber, the player shall also be awarded interest of 5% p.a. on said amount as from the respective due dates, until the date of effective payment, as follows:

- 5% interest p.a. on the amount of USD 500,000 as from 4 August 2016;

- 5% interest p.a. on the amount of USD 200,000 as from 2 February 2017;

- 5% interest p.a. on the amount of USD 2,830 as from 7 May 2017.

22. In continuation, the Chamber focused its attention on the consequences of the breach of contract in question and, in this respect, it decided that, taking into consideration art. 17 par. 1 of the Regulations as well as the usual practice of the Chamber, the Claimant / Counter-Respondent is entitled to receive from the Respondent / Counter-Claimant compensation for breach of contract.

23. In continuation, the DRC focused its attention on the calculation of the amount of compensation for breach of contract due to the club by the player in the case at stake. In doing so, the DRC firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including, in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, the fees and expenses paid or incurred by the former club (amortized over the term of the contract) and whether the contractual breach falls within a protected period.

24. In application of the relevant provision, the Chamber held that it first of all had to clarify whether the pertinent employment contract contained any clause, by means of which the parties had beforehand agreed upon a compensation payable by the contractual parties in the event of breach of contract. In this regard, the Chamber observed that the employment contract does not contain any such clause.

25. As a consequence, the members of the Chamber determined that the amount of compensation payable by the player to the club had to be assessed in application of the parameters set out in art. 17 par. 1 of the Regulations. Bearing in mind the foregoing, the Chamber proceeded with the calculation of the monies payable to the player under the terms of the employment contract as from its termination and concluded that the player would have been entitled to receive USD 1,900,000 as remuneration had the employment contract been executed until its regular expiry date, i.e. 2 August 2018. In this point the DRC explained that, in accordance with its long-standing jurisprudence, when calculating the compensation to be paid by a player to a club upon the breach of the contract, not only the residual value of the contract with the involved club, Al Nassr, must be considered; but also the value of the new contract the player might have signed thereafter, since an average of both amounts shall be made in order for the calculation payable to be considered proportionate and adequate.

26. In this context, the Chamber acknowledged that, after the termination of the contract with Al Nassr, the player signed a new contract with the Ecuadorian club, Barcelona SC, valid as from January 2018 until December 2020, whereby the player was entitled to a monthly remuneration of USD 500. Nevertheless, the Chamber noted that the said contract was terminated by the parties in July 2018; hence, the DRC decided to only consider the moneys actually received by the player during the term the contract with Barcelona SC was actually running, from January until July 2018, i.e. 7 months. In this respect, the DRC considered that the amount to be considered from the contract concluded between the player and Barcelona SC shall be USD 3,500 (500 x 7= 3,500). The above being unanimously shared by all the members of the Chamber, the DRC concluded that the average of both amounts that in principle would serve as basis of compensation would amount to USD 951,750 [(1,900,000 + 3,500) /2 = 951,750].

27. In addition, the DRC referred to last sentence of art. 17.1 of the Regulations, which states that the fees and expenses paid or incurred by the former club (amortized over the term of the contract) shall also be considered in the calculation of the amounts due as compensation for breach of contract. In this regard, the DRC noted that, since the transfer fee paid/payable by Al Nassr to the player’s former club, i.e. Lanus, for the transfer of the player amounted to USD 2,000,000 and insofar as the contract of the player with Al Nassr should have run from August 2016 to August 2018 (24 months in total), but the contract was terminated in April 2017, the amortized part of the transfer fee amounts to USD 750,000 [(2,000,000 /24) * 9 = 750,000]. Therefore, the non-amortized part of the transfer fee, which shall also be taken into account for the calculation of compensation, would amount to USD 1,250,000 (2,000,000 – 750,000 = 1,250,000).

28. In addition to the above, the DRC also noted that the non-amortized part of the agent fees incurred for the transfer of the player from Lanus to Al Nassr should also be considered. In this respect, taking into account the documentation provided by the parties, the Chamber concluded that the non-amortized agent fees amount to USD 325,000.

29. Consequently, the Chamber concluded that the amount of USD 2,526,750 would, in principle, serve as the amount of compensation for breach of contract in the case at hand. Nevertheless, due to the considerable outstanding amount due to the player at the date on which the contract was terminated by the latter, circumstance that –even if not considered as sufficient to establish that the player terminated the contract with just cause– must be considered; the DRC decided to reduce the amount payable by the player to the club to 50 percent thereof. Hence, the Chamber finally concluded that the amount due as compensation for breach of contract would be USD 1,263,375 (2,526,750 / 2 = 1,263,375).

30. In view of the above, the DRC concluded that the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent the amount of USD 1,263,750 as compensation for breach of contract. In this respect, the Chamber considered that, in view of the club’s request, and in line with the usual practice of the Chamber, the club shall be awarded interest of 5% p.a. on said amount as from the date on which the claim was lodged, i.e. 31 August 2017, until the date of effective payment.

31. In this context, the Chamber referred to art. 17 para. 2 of the Regulations, in accordance with which, if a player is required to pay compensation, the player and his new club shall be jointly and severally liable for its payment. In this sense, the DRC acknowledged that, after the termination of the contract with Al Nassr, the player signed a new contract with the Ecuadorian club, Barcelona SC, on 2 January 2018.

32. In view of the above, the Chamber concluded that Barcelona SC, for being the club with which the player was registered next, following the termination of the contract without just by the player cause, shall be jointly and severally liable to pay the above-mentioned compensation for breach of contract.

33. Consequently, on account of all the above-mentioned considerations, the Chamber decided that the Claimant / Counter-Respondent, must pay to the Respondent / Counter- Claimant, the amount of USD 702,830, as outstanding remuneration, plus 5% interest p.a. as from their specific due dates; whereas the Respondent / Counter-Claimant must pay to the Claimant / Counter-Respondent the amount of USD 1,263,375, plus 5% interest p.a. as from the date on which the claim was lodged, as compensation for breach of contract, which are considered by the Chamber to be a fair and reasonable amounts.

34. The DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant / Counter-Respondent and by the Respondent / Counter-Claimant are rejected.

I. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant/Counter-Respondent, Al Nassr, is partially accepted.

2. The Respondent /Counter-Claimant, Victor Hugo Ayala Nuñez, has to pay to the Claimant/Counter-Respondent, within 30 days as form the date of the notification of this decision, compensation for breach of contract in the amount of USD 1,263,375, plus 5% interest p.a. as from 31 August 2017 until the date of effective payment.

3. The Intervening party, Barcelona SC, is jointly and severally liable for the payment of the aforementioned compensation.

4. Any further claim lodged by the Claimant/Counter-Respondent is rejected.

5. In the event that the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

6. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter-Claimant, immediately and directly, of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

7. The claim of the Respondent/Counter-Claimant, Victor Hugo Ayala Nuñez, is partially accepted.

8. The Claimant/Counter-Respondent, Al Nassr, has to pay to the Respondent 1/ Counter-Claimant, within 30 days as form the date of the notification of this decision, outstanding remuneration in the amount of USD 702,830, plus interest at the rate of 5% p.a. until the date of effective payment, as follows :

i. as from 4 August 2016 on the amount of USD 500,000;

ii. as from 2 February 2017 on the amount of USD 200,000;

iii. as from 7 May 2017 on the amount of USD 2,830.

9. Any further claim lodged by the Respondent 1/ Counter-Respondent is rejected.

10. In the event that the aforementioned sum plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

11. The Respondent 1 /Counter-Claimant is directed to inform the Claimant/ Counter-Respondent, immediately and directly, of the account number to which the remittance is to be made and to notify the Dispute Resolution Chamber of every payment received.

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Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note relating to the motivated decision (legal remedy):

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport (CAS)

Avenue de Beaumont 2, CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl.: CAS directives